EXPLANATORY REPORT ON THE CONVENTION OF 18 MARCH 1970 ON THE TAKING OF EVIDENCE ABROAD IN CIVIL OR COMMERCIAL MATTERS by Ph.W. Amram I. Introduction 1. The three-week Eleventh Session of the Hague Conference on Private International Law produced the final text of the Convention on the Taking of Evidence Abroad in Civil or Commercial Matters, contained in the Final Act of the Session completed and signed on the 26th of October 1968 by all the delegations present at the Session. This Convention was prepared by Commission III, of which Dr Arnold was Chairman and Judge Balbaa Vice- Chairman. The writer of this Report was the Rapporteur. A. General purposes of the Convention 2. The fundamental purpose of the Convention is to continue the revision and modernization of the Hague Conventions on Civil Procedure of 1905 and 1954. 3. Chapter I of those Conventions, dealing with the service abroad of documents, was revised at the Tenth Session of the Conference in 1964, in the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, which came into force on February the 10th, 1969. 4. Chapter II of those Conventions, entitled ‘Letters of Request (commissions rogatoires)’ dealing with the obtaining of evidence abroad, is the subject-matter of the present Convention. 5. The Chairman succinctly stated the basic principle which animated all the discussion. Any system of obtaining evidence or securing the performance of other judicial acts internationally must be ‘tolerable’ in the State of execution and must also be ‘utilizable’ in the forum of the State of origin where the action is pending. 6. In broad outline, the Convention seeks to: a) improve the existing system of Letters of Request; and b) enlarge the devices for the taking of evidence by increasing the powers of consuls and by introducing, on a limited basis, the concept of the commissioner; and at the same time c) preserve all existing more favourable and less restrictive practices resulting from internal law, internal rules of procedure and bilateral or multilateral conventions. 7. Among the significant novelties in the Convention are new rules on a language, the introduction of the Central Authority as a receiving agent, provision for the privileges and immunities of witnesses, a differentiation in the powers of a consul dependent upon the nationality of the witness, and the recognition of the use of commissioners as a technique for obtaining evidence on an optional basis. B. Relationship between the present Convention and the Conventions of 1905 and 1954 8. The present Convention will replace articles 8-16 of the Conventions of 1905 and 1954 as between States which have signed one or both of these earlier Conventions and also become Parties to the present Convention (article 29). Supplementary Agreements executed under the Conventions of 1905 and 1954 will remain effective as between States which also become Parties to the present Conventions, unless the States concerned agree otherwise (article 31). 9. The present Convention has no effect on article 23 of the Convention of 1905 or article 24 of the Convention of 1954 (article 30). These deal with free judicial assistance, a topic excluded from the coverage of the present Convention. 2 C. Parties to the Convention 10. The Convention is not a ‘closed’ convention. The initial States entitled to become Parties are those States which were represented at the Eleventh Session of the Conference (article 37). After it has entered into force (article 38), any other State may accede to the Convention if (1) it is a Member of the Conference, or (2) it is a Member of the United Nations or of one of its specialized agencies, or (3) it is a Party to the Statute of the International Court of Justice [article 39(1)]. 11. However, the accession is not automatic. It will be effective only as between the acceding State and those other States which affirmatively file a ‘declaration’ accepting the accession. As to States which file no such declaration, the accession will have no effect [article 39(4)]. D. Structure of the Convention 12. Chapter I deals with Letters of Request (commissions rogatoires). It includes articles 1-14, and regulates the form of the Letter, the scope of its content, the methods of transmission, the language to be used, the method and technique of execution, the compulsion to be exercised against a witness, the privileges and immunities of the witness, the permissible grounds for refusal to execute the Letter, and the question of costs and expenses. 13. Chapter II deals with the use of consuls or commissioners to take evidence. It includes articles 15-22, and regulates the situation under which a consul1 or commissioner may act, the extent to which approval and consent of the State of execution may be required, the extent to which compulsion against the witness may be available, the privileges and immunities of the witness, the limits of the power of the consul or commissioner, and the privilege of obtaining evidence through other channels in the event of the failure to obtain the evidence through the consul or commissioner. 14. Chapter III contains the general clauses. It includes articles 23-42, and regulates the relationship between the present Convention and the Conventions of 1905 and 1954, the limits of the power of reservation by a signatory, the declarations to be filed and the authorities to be designated under certain articles, the States which may be signatories or which may accede to the Convention, the use of diplomatic channels to resolve disputes, the application of the Convention to the territories of a signatory, the time when the Convention will enter into force, the time the Convention will remain in force, the power of denunciation and the provision for administration by the Ministry of Foreign Affairs of the Netherlands. 15. Chapter III also contains individual clauses further limiting the scope of Letters of Request, providing details respecting the Central Authority, authorizing States with more than one legal system to designate one of them to execute Letters of Request, further regulating certain costs and expenses, and listing the matters as to which States may, by agreement, derogate from the provisions of the Convention. 16. Finally, Chapter III contains, in article 27, the all-important provision that if any State, by internal law or practice, permits any act provided for in the Convention to be performed on a more liberal and less restrictive basis than the Convention provides, such internal law or practice will be unaffected by the Convention and will continue to govern. E. Scope of this Report 17. A lengthy and exhaustive Report2 accompanied the draft Convention prepared by the Special Commission. In the light of the fact that much of the basis of the draft Convention was accepted without change, or with only stylistic or detailed improvements, it would be an unjustified repetition to restate in full, in this Report, the commentary already appearing in the Report to the draft Convention. 1 Throughout this Report, the word ‘consul’ will be used as a shorthand substitute for the lengthy phrase ‘diplomatic officer or consular agent’. It should be so read wherever it appears. 2 By the same Rapporteur. 3 18. For this reason, the comments in this Report will relate primarily to those provisions of the Convention which vary from the provisions of the draft Convention. Where the draft Convention and the Convention are substantially identical, reference will be made to the relevant parts of the discussion in the Report to the draft Convention without repetition. II. Article by article analysis A. Articles 1 and 23 – Scope of Letters of Request 19. Article 1(1) is closely identical to article 1 of the draft Convention. The issuance of Letters is limited to the ‘judicial’ authorities of the State of origin. ‘Judicial’ is not defined. 20. There is no definition of ‘civil or commercial matters’. 21. There is no definition of ‘obtain evidence’ or of the French equivalent «faire tout acte d’instruction». 22. These matters are fully discussed in the Report to the draft Convention. As pointed out in that Report, any potential disagreement on the meaning of these words is to be settled through diplomatic channels (see article 36). No further discussion is needed, except to point out that article 3 sub-sections (e), (f) and (g) furnish some guide to the meaning of ‘obtain evidence’. These three sub-sections show that the Letter may be used to ‘examine’ persons and to put ‘questions’ to them, or to secure the ‘inspection’ of ‘documents or other property, real or personal’. This is more explicit and even broader than the proposed phrase in the draft Convention: ‘the taking of statements of witnesses, parties or experts and the production or examination of documents or other objects or property.’ which was excluded as unnecessary. 23. The principal changes made in the draft Convention were the inclusion of two new paragraphs in article 1 and a new article 23. 24. Article 1(2) is self-explanatory and may represent an excess of caution. No court in a foreign country should be asked to undertake the obtaining of evidence unless it is to be used in judicial proceedings in the requesting tribunal. It is not easy to contemplate that a judicial tribunal in State A would ever, issue a Letter of Request to a court in State B, where no litigation was pending or contemplated in State A, and the evidence was sought merely to satisfy the curiosity or commercial desire of a national of State A. But if such a situation should exist, the court in State B should be permitted to reject the Letter.